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ExxonMobil Oil Corporation (Staten Island) - Ruling, October 29, 2002

Ruling, October 29, 2002

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

Alleged Violations of Articles 17, 37, 40 and 71 of the Environmental Conservation Law,
Article 12 of the Navigation Law of the State of New York and Parts 597-599
and 611-614 of Title 6 of the New York Compilation of Codes, Rules and Regulations

- by -

(Staten Island)

EXXONMOBIL OIL CORPORATION,

Respondent.

RULING OF THE ADMINISTRATIVE LAW JUDGE:

Respondent's Motion for a More Definite Statement

Case No. 2-2120

Background

Department of Environmental Conservation (DEC or Department) staff issued a complaint to the respondent, ExxonMobil Oil Corporation (ExxonMobil), dated September 30, 2002. In these pleadings, staff alleges that the respondent violated Articles 17, 37, 40 and 71 of the Environmental Conservation Law (ECL), the Navigation Law, and Parts 597-599 and 611-614 of Title 6 of the New York Compilation of Codes, Rules, and Regulations (6 NYCRR) by discharging petroleum at its site located at Foot of Ellis Road, Staten Island, New York as well as failing to timely report the discharge; failing to contain the discharge; failing to properly close tanks which have been out of service more than thirty days; failing to conduct inspections; failing to maintain equipment; failing to maintain records and labels; failing to install a secondary containment system; failing to equip piping with leak detection equipment; conducting transfer of hazardous substances improperly; and performing rehabilitation of petroleum tanks without Department approval. By motion dated October 16, 2002, the respondent moved for a more definite statement. Staff submitted its response to this motion on October 18, 2002.

Positions of the Parties

Generally, ExxonMobil argues in its memorandum in support of its motion that the Department's complaint fails to set forth allegations in a manner in which the respondent can answer because the pleadings fails to: (1) identify the number, dates and amount of any alleged discharges; (2) provide the specific provisions of each regulation ExxonMobil is alleged to have violated; (3) specify what "rehabilitation" the company allegedly conducted prior to DEC approval; and (4) specify what in the Department's investigation led it to conclude that the respondent had violated the regulations cited.

In ¶ 22, the complaint states:

Respondent discharged petroleum, in violation of ECL § 17-0501 and NL § 173. As a result of inspection of the facility by the Department staff on 7/24/02-7/26/02, Respondent is considered a responsible party for petroleum discharges at the facility at Storage Tank # 14, Storage Tank #27 and Williams valve for dock lines Nos. 7, 9 and 10.

Paragraph 23 of the complaint reads:

Respondent failed to timely report a petroleum discharges (sic) at Respondent's facility, as required under NL § 175 and ECL § 17-1743. Respondent failed to indicate the existence of the ongoing petroleum discharges at Storage Tank #14, Storage Tank # 27 and Williams valve for dock lines Nos. 7, 9 and 10 in its monthly inspection report or to report the ongoing petroleum discharges to the Department. The petroleum discharges were not reported until discovered by Department staff on 7/24/02/-7/26/02.

Paragraph 24 of the complaint states:

Respondent failed to immediately undertake to contain petroleum discharges at the facility, in violation of NL § 176. Respondent had petroleum releases at Storage Tank # 14, Storage Tank # 27 and Williams valve for dock lines Nos. 7, 9 and 10 at the facility which resulted in petroleum contamination which Respondent failed to immediately contain or remove.

Respondent asserts that these allegations are insufficient to answer because they do not state how many discharges the Department is charging occurred nor do they set forth "the date(s), number and amount of any alleged discharge." ExxonMobil Mem., p.3. In addition, the respondent argues that the complaint fails to describe what staff viewed during its inspection that led it to these conclusions.

With respect to ¶ 25 of the complaint, respondent states the staff has failed to set forth the parameters of its alleged wrongdoing because it does not specifically identify which section of 6 NYCRR § 613.9(a) staff is relying upon. This paragraph reads:

Respondent failed to properly temporarily close tanks at the facility which have been out of service for thirty (30) or more days, as required by 6 NYCRR 613.9(a). An inspection of Respondent's facility by Department staff on 7/24/04-7/26/02 revealed that Respondent failed to properly temporarily close Tanks Nos. 2, 3, 20, 26, 27, 28, 29, 30, 32, 33, 43, 45, 54 and 60.

Paragraph 27 of the complaint states:

Respondent failed to keep all gauges, valves and other equipment for spill prevention in good working order, as required by 6 NYCRR 613.3(d). An inspection of Respondent's facility by Department staff on 7/24/02-7/26/02 revealed that Respondent failed to properly maintain the secondary containment system for Tanks Nos. 3, 20, 24, 42, 50 and 59.

Similarly, respondent maintains that in this claim the staff omits the specific time frame in question and no detail is provided as to what staff means by "good working order" or proper maintenance. ExxonMobil also argues that staff does not reveal what it observed during its inspection to come to these conclusions.

In ¶ 28, the complaint reads:

Respondent violated General Condition No. 5 of the facility's Major Petroleum Facility License by failing to obtain Department approval prior to rehabilitation of petroleum tanks at the facility. An inspection of Respondent's facility on 7/24/02-7/26/02 revealed that Respondent rehabilitated Tanks Nos. 5, 7, 12, 11, 12, 48, 50, 56 and 61 without prior Department approval.

Here again, respondent argues that it cannot frame an answer because the staff has failed to set forth in its accusatory instrument what specific rehabilitation was accomplished that is in violation of State regulation. And, ExxonMobil asks for the observations staff made to come to this conclusion.

Paragraph 29 of the complaint reads:

Respondent failed to perform an annual inspection of the structure-to-electrolyte potential of cathodic protection systems used to protect aboveground tank bottoms and connecting underground pipes which are subject to corrosion, as required by 6 NYCRR 598.7(c). An inspection of Respondent's facility on 7/24/04-7/26/02 revealed that Respondent failed to perform an annual inspection of the structure-to-electrolyte potential of cathodic protection systems used to protect Tank Nos. Foam 1 and 2.

Paragraph 31 states:

Respondent failed to maintain reports for each monthly, annual and five-year test or inspection required by 6 NYCRR 598.6 and 6 NYCRR 598.7, as required by 6 NYCRR 598.8(b). An inspection of Respondent's facility by Department staff on 7/24/02-7/26/02 revealed that Respondent failed to maintain reports for annual inspection of the structure-to-electrolyte potential of cathodic protection systems used to protect Tank Nos. Foam 1 and Foam 2 and for five-year inspections for Tank Nos. Foam 1 and 2.

As to these allegations, the respondent faults the complaint for failing to provide dates for the alleged failure to conduct inspections or to specify what specific sections of the regulations that ExxonMobil violated.

Paragraph 32 of the complaints states:

Respondent failed to display and permanently affix a label which shows the information required in Part 599.3(a)(1) and Part 596.2(h), and the date of installation at the fill port, as required by 6 NYCRR 599.3(a)(2). An inspection of Respondent's facility by Department staff on 7/24/04-7/26/02 revealed that Respondent failed to display and permanently affix a label which shows the information required in Part 599.32(a)(1) and Part 596.2(h) and the date of installation at the fill port for Tank No. 31.

Because these regulations speak to different information that is required, the respondent objects that staff has not identified specifically what was allegedly lacking.

Paragraph 33 states:

Respondent conducted the transfer of hazardous substances within a transfer station which was not equipped with a permanently installed secondary containment system, in violation of 6 NYCRR 599.17(c). An inspection of Respondent's facility by Department staff on 7/24/02-7/26/02 revealed that Respondent conducted the transfer of hazardous substances within the transfer station and fill port locations for Tank No. 31, which was not equipped with a permanently installed secondary containment system.

With respect to these allegations, the respondent claims that the staff has failed to provide the nature of the hazardous substances allegedly transferred, the number of transfers and when the staff alleges these occurred. And, ExxonMobil argues that staff has also failed to provide information on what it did observe leading to these conclusions.

Paragraph 35 of the complaint reads:

Respondent failed to equip all on-ground and underground piping with leak detection equipment capable of detecting leakage between the piping and the secondary containment system, as required by 6 NYCRR 599.15(b). An inspection of Respondent's facility by Department staff on 7/24/02-7/26/02 revealed that Respondent failed to equip the underground piping for Tank No. 31 with leak detection equipment capable of detecting leakage between the piping and the secondary containment system.

In its memorandum, respondent criticizes this paragraph by stating that the staff first alleges that respondent failed to equip all piping with leak detection but in the second sentence points to only one such omission. Respondent argues that this must be clarified in order for it to submit an answer.

In staff's response to ExxonMobil's motion, it annexed the August 1, 2002 notice of violation (NOV). This NOV spells out the results of the July 2002 inspection in much greater detail than the complaint. Also annexed to staff's response is a letter from L. Hank Muller, the Port Mobil Terminal Manager for ExxonMobil dated August 30, 2002 to Anthony J. Signona, P.E. of DEC's Region 2 office. As this letter provides a specific response to each alleged violation in the NOV, staff argues that obviously respondent is well aware of the complaint's allegations and no further elucidation is needed.

Discussion

Section 622.3(a)(1)(iii) of 6 NYCRR provides that a complaint include "a concise statement of the matters asserted." The regulations also provide an opportunity for a respondent to move for a more definite statement in the event that the complaint "is so vague or ambiguous that respondent cannot reasonably be required to frame an answer." 6 NYCRR § 622.4(e).

With respect to ExxonMobil's arguments concerning ¶¶ 22-24 of the complaint, I find that staff's pleading meets the requirements of the regulation. The staff conducted an inspection in July and found petroleum discharges at the locations noted. Staff also alleges that the respondent failed to report these spills or to contain them. The respondent seeks information about how many discharges and the volume. However, these are questions that can be posed during discovery. Moreover, since the statutes and regulations prohibit any spill, the relevancy of this information is unclear. In addition, since staff is basing these allegations on the July inspection, it is also unclear how and whether staff would even have a basis to provide the information that the respondent seeks.

With respect to the remaining allegations that respondent claims are too vague for an answer, I agree that the complaint falls short in not specifying the specific factual underpinnings for each alleged violation of the relevant regulation. However, Exhibit A to staff's reply does provide this information. For example, with respect to ¶ 25 of the complaint that concerns an alleged failure to properly temporarily close tanks, on page 2 of the NOV, staff specifically details that for the numbered tanks described the respondent failed to properly bolt and lock all man ways securely. The NOV goes on to identify certain tanks for which open man ways were covered with wire that would permit product to spill.

Thus, where the complaint may be lacking, the NOV provides the necessary detail that complies with 6 NYCRR § 622.3(a)(1)(iii). And, in order to avoid further delay of these proceedings, I will not require staff to go through the exercise of serving an amended complaint that merely copies this information into an amended pleading. However, based upon staff's response that the details in the NOV comprise the bases for the allegations, staff is bound to the parameters of that document unless it moves to amend its complaint.

Conclusion

The complaint meet the requirements of the regulations based upon the detail provided in the NOV of August 1, 2002 and which the respondent has had in its possession prior to the service of the complaint dated September 30, 2002.

Ruling

ExxonMobil's motion for a more definite statement of the complaint is denied in all respects. Staff is bound to the allegations set forth in the complaint as elaborated upon in the August 1, 2002 NOV.

_____________/s/_____________
Helene G. Goldberger
Administrative Law Judge

Dated: Albany, New York
October 29, 2002

TO: Benjamin A. Conlon
Associate Attorney
NYSDEC - DEE
625 Broadway - 14th Fl.
Albany, New York 12233-5550

Joseph T. Walsh, III, Esq.
McCusker, Anselmi, Rosen,
Carvelli &Walsh
127 Main Street
Chatham, New Jersey 07928

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